Imperial challenge to Scottish Parliament act over tobacco displays and sales

The UK Supreme Court will this week be the forum for another attempt to challenge the lawfulness of an act of the Scottish Parliament. It would appear that the score is currently Holyrood 2, Challengers 0.

Four days have been allocated to the challenge by Imperial Tobacco, arguing that sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 are outside the legislative competence of the Scottish Parliament as set out in the 1998 Scotland Act.

The Tobacco and Primary Medical Services (Scotland) Bill received royal assent on 3 March 2010. Section 1 of the Tobacco and Primary Medical Services (Scotland) Act 2010 (the TPMSSA) relates to the prohibition of tobacco displays and section 9 relates to the prohibition of vending machines for the sale of tobacco products.

In March 2010, Imperial 
Tobacco sought judicial review of sections 1 and 9 of the TPMSSA, arguing that the provisions are outside the legislative competence of the Scottish Parliament and, therefore, that the provisions be set aside.

While matters of public health are devolved, they argued, consumer protection and regulation of trade are reserved. The argument was unsuccessful.

Imperial Tobacco appealed, restating the proposition that sections 1 and 9 of the TPMSSA relate to matters reserved to the United Kingdom parliament or, alternatively, that they purported to modify provisions protected from modification by the Scotland Act 1998.

The appeal was heard in February this year and was dismissed by three judges – Lord Hamilton (Lord President), Lord Reed and Lord Brodie.

Since February Lord Reed has been appointed to the Supreme Court and will not be able to sit on this week’s appeal. Lord Hope will be the only Scottish judge on a bench of five.

The Imperial Tobacco appeal was led in the Court of Session by Mike Jones QC, who has since become a Senator of the College of Justice, as Lord Jones. He has been replaced by Richard Keen QC, dean of the Faculty of Advocates, with Brian Gill, son of the Lord President, continuing as junior in the case.

Lord Wallace of Tankerness, Advocate General, will represent the UK Government as “Intervener”. A spokesman for the Advocate General said: “Cases which consider the boundaries of the devolution settlement do not come before the Supreme Court very often. The UK government supports the policy objectives of the Scottish legislation which is under challenge. Similar legislation is in force in England and Wales.”

This week’s challenge will be only the third occasion on which the UK Supreme Court has been explicitly invited to rule that an act of the Scottish Parliament is ultra vires.

AXA and other insurance companies challenged The Damages (Asbestos-related Conditions) (Scotland) Act 2009 which provided that pleural plaques and certain other asbestos-
related conditions were actionable in Scotland for the purposes of damages in the law of personal injury. The AXA appeal was led by Richard Keen and was unsuccessful, although the Supreme Court allowed itself room to manoeuvre in the future by reserving its right to intervene in extreme cases of irrationality by the Scottish Parliament.

In 2010 the Supreme Court dismissed a challenge in the cases of Martin and Miller to sentencing provision in road traffic cases on the grounds that road traffic law is reserved. However, the Supreme Court by 3-2 ruled that criminal law is devolved as regards sentencing, and that was the primary purpose of the 
legislation.